1830737 (Migration)

The Administrative Appeals Tribunal (AAT) considered the cancellation of a Bridging E (Class WE) visa held by the applicant. The dispute arose because the applicant had been charged with criminal offences, which the Minister considered a ground for visa cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(p)(ii) of the Migration Regulations 1994 (Cth). The applicant contested the cancellation, arguing he was not involved in the alleged offences.

The primary legal issue before the Tribunal was whether the ground for cancellation existed and, if so, whether the Minister's discretion to cancel the visa should be exercised. Specifically, the Tribunal had to determine if being charged with offences, without a conviction, was sufficient to enliven the cancellation power. The Tribunal was also required to consider the relevant primary and secondary considerations as mandated by Direction No. 63, which governs the cancellation of Bridging E visas on these grounds.

The Tribunal reasoned that a conviction was not a prerequisite for visa cancellation under the relevant provisions. It found that the applicant had indeed been charged with offences, satisfying the ground for cancellation. In exercising its discretion, the Tribunal gave significant weight to the government's policy of having a low tolerance for criminal behaviour by non-citizens, emphasising the importance of upholding community expectations and maintaining the integrity of the migration system. While acknowledging the applicant's presumption of innocence in criminal proceedings, the Tribunal distinguished this from its own role in determining visa cancellation. The Tribunal considered the alleged offences to be serious, particularly as they involved a minor, and concluded that these factors weighed heavily in favour of cancellation.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 050 (Bridging (General)) visa.